Rule 55.Default

Rule 15-6-55 starts with the basic fact-finding step: when a party who owes affirmative relief has failed to plead or otherwise defend, that failure has to be shown by affidavit before anything else happens. Default is not something the clerk notices on its own from the file; someone has to establish it.

Getting an actual default judgment takes more than an unanswered complaint. The party entitled to judgment must apply to the court for it, and no default judgment can be entered against a minor or an incompetent person unless a guardian, conservator, or guardian ad litem has appeared for them in the case. If the defaulting party already appeared in the action, that party is entitled to three days’ written notice of the application before the hearing on it — the rule does not let a party who showed up get shut out without warning. Where damages or other matters still need to be pinned down, the court can hold hearings or order references, and it has to honor any statutory right to a jury on those questions.

Two more guardrails apply before judgment can enter. No default judgment can be entered against a defendant until the complaint has been on file for at least twenty days, unless the complaint was served together with the summons. And where service was made by publication, the court has discretion to require the plaintiff to post security before judgment, to cover restitution if the defendant later appears and successfully defends the case.

A default judgment is not necessarily the end of the matter. Rule 15-6-55(c) lets the court set one aside for good cause shown, following the standard in Rule 15-6-60(b). And the rule applies the same way whether the party seeking default is a plaintiff, a third-party plaintiff, or a party pursuing a cross-claim or counterclaim — in every case, the resulting default judgment stays subject to the cap in Rule 15-6-54(c) on what a default judgment can award.